CFC Blacklists?

This is from the always informative EFF newsletter today (which is not yet available on their website):

* EFF, Nonprofits Challenge Secret Government Blacklists

Funding for Charities Should Not Be Tied to Screening

Washington, DC - EFF this week joined the American Civil Liberties Union (ACLU) and close to a dozen other nonprofit organizations in filing for an injunction from the US District Court in Washington, DC, to stop the federal government from requiring charities to use blacklists in order to receive payroll donations from federal employees. The groups argue that the new requirement, which was implemented without any notice or public comment period, is not authorized by statute and violates the First and Fifth Amendments.

The Combined Federal Campaign (CFC) enables federal employees to contribute easily to their favorite nonprofit organizations through automatic payroll deductions. In 2003 alone, this program brought over
$248 million to thousands of charities. Earlier this year, the government for the first time began requiring all organizations participating in the CFC to certify that they have screened every employee and expenditure against a series of blacklists created by the government on the basis of secret information. Charities that refuse to sign the certification cannot participate in the CFC, even if they meet all other requirements.

"The government can't force charities to become its 'anti-terrorism enforcers' simply because federal employees donate to those charities," said Kevin Bankston, EFF Attorney and Equal Justice Works/Bruce J.
Ennis Fellow. "EFF refuses to violate the privacy of its clients and employees by screening them against secretly compiled blacklists. It was wrong during the McCarthy era, and it's wrong now."

EFF participated in the CFC program for two years prior to the blacklist certification requirement but withdrew from the program earlier this year in protest.

The invocation of McCarthyism is a little hasty. They did it to make a big impression, I know. I do it when I write letters too. Here's what is troubling me about the whole affair. WHY... are the data behind the blacklists secret? The Bush administration has been accused of being overly secretive and this is a good example of that impression at work. Are they more secretive than other presidential administrations? No, I don't think so. I think they are less skilled at coming up with feints and distractions to explain the secrecy. Frankly, I don't care how they came up with the lists. What struck me immediately was that there is no explanation of why it's a secret. If there's a reason they can't explain the data behind the blacklist, then let's hear that... I'm really sick of the "national security" excuse as a catch all for every secret.

I think we live in a world, an era, where secrecy and the unknown is just going to have to be part of our lives. We couldn't do anything if we demanded detailed answers to every nagging question. I'm not demanding an explanation of the gaps in unified field theory when I microwave a burrito to eat as I type up a rant for my blog. The vagraies of quantum cooking just aren't going to impact the fact that I want a burrito while I type. In politics, which is almost as complicated as quantum physics, I don't need to know the detailed facts. What I want to know is, WHY are things are an unknown. This is where the Bush administration fails... it cannot confidently explain the reason the data are a secret. I can think of plenty of good solid reasons to explain this action that do not impact national security, but it's just my guess... I can also think of plenty of really evil and scarey reasons to do this, but that's just my guess as well.

At the basic level, if the federal government is going to provide this service to it's employees as a convenience, it has the right to set requirements for its use. I imagine the real concern is that the federal government doesn't want to be wiring money directly to charities that are funneling that money to terrorists in some form. The position seems to be, if a federal employee wants to give money to a charity that is not qualified to participate in the program, then they can do so on their own time and write their own check. EFF and the rest of the affected charities seem put off by the idea that federal employees might not take that time on their own to write a check. EFF claims to have withdrawn from the program in protest, but in reality, if they aren't going to screen their employees, then they aren't elligible to participate anyway.

This is a customer driven scenario here. The EFF is selling its charitable activities to the public. The public is buying those activities and the federal government is handling the money transfer. If the EFF wants to accept money by this route, then I suppose it has to play by those rules. This is like McDonalds complaining that the health industry is monkeying with their sales by giving the public dietary guidelines. If McDonalds wants to sell its product it must play ball with the public and give them what they want. It can't protest good eating habits and refuse to sell food to health conscious people.

Yeah, it's a little bit of a stretch. But you'd think these charities considered themselves above their donators. If they want to get this convenience from the employer of federal workers, then they have to chin-up to the bar. If they don't want to chin-up then they aren't going to get the convenience of automatic donations. If EFF et al. was intersted in getting this convenience (provided by the federal government of its own free will) then they cannot dictate its execution. It really has nothing to do with them at all. If I'm going to donate to a charity, maybe I want to know more about it... If the charity isn't going to tell me where my money is going, then I'm highly inclined to not give them my money.

Which brings us back to the question of these lists. Who's on them and why are some charities so reluctant to certify that they are not employing or giving money to anyone on those lists? If I have Adolf Hitler working at my charity and we buy office supplies from Pol Pot, then I can expect people to have a problem with donating money. I can only assume that there are names on the list like John Q. Ordinary with no obvious ties to terrorists... why does his employment at my charity make us inelligable for the program? I'd want to know too. If the DOJ had a reason like, "he's related to an ongoing investigation involving XYZ," then I might be more inclined to be understanding even if I didn't know all the facts of the case. However, I'd want to know the status of the case and how long old John can expect to be part of the investigation. A suspected murderer can only be held so long without charging him/her; the same should apply to these lists.

The biggest flaw with the Ashcroft DOJ was that they never clearly defined limits or intentions in much of their legistlation. Which is why it has been such a fiasco. Ashcroft always left himself huge swaths of grey-area to wiggle in. This puts a huge burden on the Supreme COurt to hack out the intentions of laws in the courts which leads me to believe that the laws may have been written to deliberately have a powerful short term effect in handling potential terrorists with tight time tables, and never stand the test of the judicial process. That is to say, a bad law gives police the tools they need to disrupt terrorist networks with trumpted up charges based on circumstantial evidence in the short run, while never intending to actually prosecute or incarcerate them in the long run. It's similar to an RIAA strategy which is being thwarted by the fair use offensive I noted a few weeks ago.

As usual, I'm coming down in the middle on this one. The EFF is whining too much and about the wrong things, and the federal government is being too secretive... or at least not very informative.